Friday, 8 May 2015

Is Brexit inevitable? The UK’s EU membership after the General Election

Steve Peers

The unexpected election of a Conservative
majority government in the UK raises some fundamental questions about the UK’s
continued membership of the European Union. As a first response to the election
results, I’ll discuss here in turn the issues relating to the referendum and the
renegotiation.

The Brexit referendum

What are the key issues of
principle concerning the upcoming referendum?

First of all, let’s start with
the obvious point: the new government will implement the Conservative party’s policy
of attempting to renegotiate the UK’s membership of the European Union, followed
by an in-out (‘Brexit’) referendum on the results of the referendum by the end
of 2017. A government bill to this effect will likely be swiftly introduced; it
will probably be similar to the Private Member’s Bill tabled on this
issue in the last parliament, which was supported by the Conservative party.

Secondly, as I blogged last year, the opposition of many pro-Europeans to a referendum was both a
mistake in principle, and a tactical error too. There’s clearly no point in
expending any political energy on resisting a referendum any further. The issue for the pro-EU side is now how to win
the referendum.

Thirdly, the idea of trying to
expand the voting franchise to cover all EU citizens living in the UK is a moot
point in light of the outcome of the election. That’s simply because the
Conservatives have the votes to push through (as they proposed in the prior
Bill) a referendum based on the usual UK general election franchise (UK, Irish
and Commonwealth citizens living in the UK, and UK citizens who have lived
abroad for less than 15 years). Indeed, as I blogged earlier this year, while
I sympathise with EU citizens living in the UK who would like to vote in a
Brexit referendum, it would again be both wrong in principle and a tactical error
to expand the franchise for that referendum.

Thirdly, there’s no particular
reason to assume, as some inside and outside the EU do, that the anti-EU side
will win the referendum. Rather the contrary: according to polling, support
for staying in has risen in recent years, and clearly exceeds the support for
leaving. That’s before any renegotiation takes place. Of course, we might not
want to rely on polling so much in light of the election result - although the lead for the pro-EU side in this poll is much larger than the error in opinion polls during the general election. There’s also no
good reason to consider the election result as a de facto vote for Brexit: the Conservative party was arguing for a renegotiation
and referendum, not Brexit as such, and did not even get near 40% of the vote
in any case. In a referendum, there is no ‘first past the post’ to distort the
outcome of the public choice between multiple parties – only a straight ‘yes or
no’ decision.

Renegotiation

There are three important
political dynamics that will shape the debate over renegotiation of EU
membership – and therefore affect the ensuring referendum – in the two and a
half years to come.

First of all, a key issue will be
the relationship between David Cameron and the rest of his party, most notably
the large Eurosceptic chunk of it. Cameron’s decision to promise a
renegotiation and a referendum, and then to make immigration from the EU such a
key feature of the renegotiation, was prompted by demands from his backbenchers
and concerns about losing Tory votes to UKIP. The latter concern will surely now
go on the back burner issue as a result of the general election; but could the former
issue become more important? With a small majority, is Cameron now even more at
the beck and call of his back-benchers?

The key issue here is whether Cameron
will continue to respond to Eurosceptic demands to harden his negotiation
position (or not to give any ground on the position he has already set out), or
whether he will (on this issue at least) feel less pressure than before. After
all, he has answered his internal party critics by winning a majority in the
House of Commons – and he has less pressure on him as a result of his intention
to retire by the end of this parliament. A crucial question here is whether he
could count on other parties’ support, if necessary, in the event of a
rebellion by his own Eurosceptic backbenchers.

There’s an important point of
principle here. Not only does the Conservative party have a democratic mandate to
hold a renegotiation and a referendum: it also has a mandate to hold that renegotiation
on
the terms that Cameron has already set out. Some Eurosceptics believe
that the UK could demand any renegotiation terms it liked from the rest of the
EU, and automatically get them. But the lack of enthusiasm from other Member
States for Cameron’s demands so far suggests that the Conservative party’s
demands are already at (if not beyond) the limits of what other Member States
could be willing to accept. Those Eurosceptics who feel that his current renegotiation
demands are not enough should join the pro-Brexit camp openly and honestly,
instead of trying to trick Cameron into making unrealistic demands in the hope
that other Member States’ rejection of them would compel Cameron to give up on
renegotiation and campaign for Brexit himself.

Secondly, a key issue is what
other Member States now do following the general election result. There seemed
to be little interest in discussing the renegotiation requests before, but that
was understandable for two obvious reasons. First of all, because of the pending
general election: why start to renegotiate with someone who might soon lose
office? Secondly, because (and this was widely misunderstood) the British government never requested a renegotiation;
it was Conservative party policy
only. In the absence of agreement on Cameron’s strategy from the Liberal
Democrats, the UK government as such never requested a renegotiation.

Both those obstacles to talks
have now been removed. The question is whether other Member States are now inclined
to respond to the requests for renegotiation or not. The response of key Member
States like Germany, and traditional friends of the UK like the Netherlands and
Ireland, will be crucial. While some Member States may think ‘this is too politically
difficult for us’ or ‘if you don’t like the EU, just go away’, this would be a
mistake. As a net contributor to the EU budget and a net importer of goods from
the EU, it would be foolish for other Member States to refuse to negotiate at
all – although as I said already, that does not mean that the UK can expect the
rest of the EU to accept any and all renegotiation demands it might wish to
make.

The renegotiation process will
raise some important legal questions about the form and substance that
renegotiation will take. I have blogged about some of these points
earlier, and will be coming back to them over the months ahead.

Thirdly, the role of other political
parties in the UK will be crucial. As I already mentioned, Cameron might need
their support in the event of a rebellion by Eurosceptic backbenchers. Tempting
as it might be to cause trouble for Cameron, it’s not in the interests of
pro-EU parties to jeopardise the UK’s EU membership, which they support. Because
the Conservative party has a majority, other parties will have no direct influence
on the renegotiation as such. But they have an indirect importance, because of
their key role in ensuring a Yes vote in the Brexit referendum. This can hardly
be secured by Tory votes alone, given that the party attracts under 40% of the
vote, including many anti-EU voters.

This has implications for the
content of the renegotiation. Many Tories would love to see a renewed opt-out
from the social chapter; but many voters on the left might reject staying in
the EU on that basis (even if it could be negotiated with other Member States).
Anything beyond a modest curtailment of the EU’s working time Directive (for
instance, overturning the wacky CJEU case law counting doctors’ sleep as ‘working
time’) could risk an anti-EU vote.

Furthermore, this means that
pro-EU opposition parties will have to share a platform with (some) Tories –
even though we can be certain that after two years of Tory government there
will be utter loathing of that idea. But a ‘no’ to the EU will not force the Tory
government out, or even cause Cameron to resign (it’s widely assumed that he
would resign as Tory leader shortly after the Brexit vote anyway). And the most
fervent supporters of the free movement of EU citizens will have to accept that
some curtailment of free movement rights is an inevitable consequence of the
renegotiation. Without it, there will soon be no free movement between the UK
and EU at all.

As for the anti-EU parties
(mainly UKIP and a big chunk of the Tories, with a smattering of politicians from
other parties), the key issue will be whether they can sell a coherent and plausible
alternative to the UK’s EU membership. This is another issue which I will come
back to, since it raises many legal issues. But suffice it to say that the
simplest alternative to EU membership (the European Economic Area) is
unattractive to Eurosceptics because it still provides for free movement of
people. Any other alternative will entail a negotiation of a new agreement with
the other Member States. But the anti-EU side will not only have to agree a
common view on what this would entail, but also convince the public that other
Member States will necessarily accept it. Compare to the Scottish independence
referendum last year, where the SNP government was able put forward a single detailed plan on what independence
would look like (I doubt that the various Eurosceptics could easily agree on
the equivalent) but could not then (as I blogged at the time) convince enough
Scottish voters that the remaining UK would agree to it. This may prove to be the Achilles heel of the anti-EU side.Finally, a more general point. The result of the general election is undoubtedly a great shock and disappointment to non-Tories like myself. But the prospect of a Brexit referendum offers us a chance to fight (alongside pro-EU Tories) for important things we believe in, well before the next general election: employment rights, environmental and consumer protection, human rights, animal welfare, openness to the outside world and economic prosperity through trade in goods and services and free movement of people. Let's try to light this candle, not simply curse the darkness.

*This post is linked to research
for my forthcoming book from Hart Publishing – Brexit: The Legal Framework for Withdrawal from the EU or Renegotiation
of EU Membership

2 comments:

I am relatively optimistic that the majority will vote for staying in the EU, but it depends on a few factors. Most importantly, Cameron will need to understand that a clear Yes to the EU vote is not only good for his friends in the economy, but also that it gives him an enormously tactical edge over UKIP in the next years to come: UKIP's argument to be representing the silent majority will not work any more. If Cameron's government stops using immigration as a scapegoat and starts pointing out the economic dangers of leaving in the EU for the next 2 years (which they can, as they have no election to win), there is little chance of a Brexit.

He also needs to be careful in the renegotiation. Another rejection for another bold move to change the free movement of workers single handedly against the will of 27 other member states is not going to look good, neither for him nor for the EU.

The press also has an enormously huge roll to play. We saw in this election how powerful it still is - "if you vote Labour, you'll end up with a Scottish dictatorship" was definitely one of the important reasons for the surprise Tory win.

And, most importantly, father coincidence needs to be on our side. I'm sure that research can be done that proves how the "No to the EU" votes in the polls correlate to bad news about the Euro crisis. The "Yes" side only really gained traction since Greece and Ireland stopped dominating the UK's headline.